Family Law Case Updates – April 2012

Alimony:

Featherston v. Featherston, 37 Fla.L.Weekly D944 (Fla. 2nd DCA 2012).  Trial Court abused discretion by not awarding retroactive alimony because Wife had a non-marital asset available to her.

Galstyan v. Galstyan, 37 Fla.L.WeeklyD916 (Fla. 4th DCA 2012).  Trial Court reversed for awarding $5,000 per month in alimony to Wife without findings as to Husband’s ability to pay.  Trial Court also erred by setting arrearage payment without finding, as to ability, and requiring Husband to secure alimony with both life insurance and a bond.

Walker v. Walker, 37 Fla.L.Weekly D872 (Fla. 1st DCA 2012).  Trial Court reversed for awarding permanent alimony with no findings as to Wife’s needs.

Discovery:

White v. White, 37 Fla.L.Weekly D786 (Fla. 4th DCA 2012).  Order determining Wife waived attorney client privilege because her daughter and son in law attended 65% of attorney conferences reversed because disclosure to third parties was reasonably necessary for the transmission of communication.  Wife was 74, had short term memory loss, glaucoma, and could not read Hebrew (language financial documents were in).

Bushong v. Peel, 37 Fla.L.Weekly D726 (Fla. 2nd DCA 2012).  Trial Court’s order quashing Husband’s discovery requested target at marital business reversed as the records were needed to fashion equitable distribution.

Domestic Violence:

Shawver v. Scarvelli, 37 Fla.L.Weekly D807 (Fla. 5th DCA 2012).  Trial Court erred in entering injunction against repeat violence when only one act of violence was alleged and proven.

Enforcement:

Fernandes v. Fernandes, 37Fla.L.Weekly D931 (Fla. 5th DCA 2012).  Trial Court’s order of contempt reversed when final judgment failed to reference or incorporate mediated settlement agreement.  For a person to be held in contempt language must be clear and precise and conduct must clearly violate order.

Rojo v. Rojo, 37 Fla.L.Weekly D899 (Fla. 3rd DCA 2012).  Order holding Mother in contempt because child would not travel to Mexico to see Father and imposing $100 per day fine reversed when child became hysterical and refused to board plane and no findings to support economic sanction.

Ramirez v. Ramirez, 37 Fla.L.Weekly D787 (Fla. 4th DCA 2012).  Trial Court reversed for incarcerating Husband for failing to pay temporary support when order contained no findings of present ability or willfulness of act.

Equitable Distribution:

Kumar v. Kumar, 37 Fla.L.Weekly D725 (Fla. 2nd DCA 2012).  Error for Trial Court to defer equitable distribution until after mediation in final judgment.  Failure not to distribute all marital assets is error.  Trial Court also erred valuing CD’s at time of filing and not accounting for passive appreciation during pendency.  If Husband was a mere employee, he would not be entitled.  Standard of review is whether Trial Court departed from essential requirements of law and caused material injury leaving inadequate remedy on appeal.

Exceptions:

Ward v. Dones, 2012 WL 1315511 (Fla. 3rd DCA 2012).  Trial Court reversed for granting exceptions when evidence supported Magistrate’s report.  Here Trial Court reweighed evidence to make different findings as opposed to determining whether findings were based on substantial evidence.

Miscellaneous:

DOR v. Ortiz, 37 Fla.L.Weekly D854 (Fla. 4th DCA 2012).  Trial Court erred in vacating foreign support judgment registered in Florida that is more than a year old.

Modification:

Acosta v. Renta, 37 Fla.L.Weekly D829 (Fla. 3rd DCA 2012).  Trial Court reversed for granting Former Husband’s petition to reduce alimony to $1 but holding Former Husband in contempt for not paying full amount during pendency of action with no explanation of reasoning.

Hartman v. Hartman, 37 Fla.L.Weekly D785 (Fla. 4th DCA 2012).  Contempt order that modified Father’s responsibility towards child’s college expenses reversed because no modification action was pending.

Parenting:

J.R.B. v. J.L.B., 37 Fla.L.Weekly D845 (Fla. 4th DCA 2012).  Trial Court reversed for granting grandparents custody pursuant to Chapter 751, Florida Statutes when petition was filed while children were visiting grandparents under Court order, as opposed to residing with them.

A.L.G. v. J.F.D., 2012 WL 1109026 (Fla. 2^nd DCA 2012)  Paternity parental plan that rotated 2 year old child across the country every 6 weeks reversed as it was inconsistent with Court’s oral pronouncements that child’s best interest was to spend majority of time with Mother, and rotating custody was not in child’s best interest.

Munroe v. Olibrice, 37 Fla.L.Weekly D740 (Fla. 4th DCA 2012).  Trial Court erred in ordering visitation without a parenting plan and failing to address parental responsibility.

Paternity:

J.T.J. v, N.H., 37 Fla.L.Weekly D791 (Fla. 4th DCA 2012).  Trial Court reversed for dismissing paternity filed by biological Father when child born into intact marriage, Father surrendered rights to DCF, and Mother did not object.  Presumption of legitimacy may be overcome with clear and compelling reason based on best interests of child.

Prenuptial Agreements:

Weymouth v. Weymouth, 37 Fla.L.Weekly D850 (Fla. 4th DCA 2012).  Trial Court affirmed for triggering penalty clause in prenuptial agreement based upon circumstantial evidence.  Because adultery usually takes place in secret or seclusion, proof in most cases is by circumstantial evidence, through showing desire by mutual affection, coupled with circumstances that would lead to a reasonable person would conclude adultery occurred.   Wife did not waive appreciation in non-marital assets, but remanded as Court failed to follow Kaa in determining marital enhancement.

Relocation:

Alinat v. Curtis, 37 Fla.L.Weekly D939 (Fla. 2nd DCA 2012).  Trial Court erred as a matter of law in granting temporary relocation for three years.  Temporary orders are preliminary short term orders and final hearing should occur within 90 days of notice.

Support:

Warren v. Warren, 37 Fla.L.Weekly D820 (Fla. 2nd DCA 2012).  Order of support reversed when parties agreed calculation was based on evidence not before the Court.